Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

If I Want To Relocate From N.J. With My Child, Do I Have A Right To A Trial?

Yes, a parent who seeks to relocate from the jurisdiction of New Jersey with their child has the right to a plenary hearing (or trial).  Every lawyer at my office understands that child custody decisions have a huge impact on the lives of both parents and children. While New Jersey Family Courts and child custody attorneys all desire for children to enjoy the benefit of having a meaningful relationship with both parents, sometimes circumstances, such as moving to another state, greatly complicate the family dynamic. In Vitolo v. Sabba, mother, Erica Vitolo, appealed from a Family Part order dated August 15, 2014, that denied her motion to move to Florida with the parties’ three-year-old son. Erica and William Sabba met in 2009, and between the years of 2010 and 2011, they lived together sporadically. Even though they were living together when Erica got pregnant in 2012, not much time later they separated in March 2013 when their son was born. A couple weeks after the birth of the child, William filed a motion for custody and parenting time with the Family Part court of Ocean County. In response, Erica filed a counterclaim and requested a change of venue to Somerset County. Both motions, were withdrawn so the parties could refile in Somerset County.

Erica filed a motion with the Family Part court of Somerset County on October 21, 2013. She requested custody, child support, a paternity test, and medical coverage. A DNA test was conducted and William’s parentage was confirmed. After that, on February 7, 2014, the parents appeared in court. William wanted joint custody, while Erica wanted sole custody. 

A temporary order was issued by the Family Part on March 21, 2014 that gave both parents joint legal custody, with Erica designated as the parent of primary residence. William was allowed parenting time every Sunday for four hours, as long as he attended parenting classes. He was also obligated to provide Erica for $ 5,000 to cover pre and post-natal care, and child support in the amount of $ 125. 

Erica filed a motion to take the child and move to Florida in June 30, 2014. William wanted more parenting time, and opposed the motion. The parents appeared at court on August 15, 2014. The Family Part judge assigned to the case did not take any testimony, did not make any findings, and did not issue an oral or written decision.  

William lived in Toms River and Erica and the child lived in Cranford with Erica’s mother. Erica also had sole custody of another child that she had in a previous relationship, but received no monetary support from that father. While she usually worked in restaurant, she did not have a job at the time of this motion. She lost a home she owned for twelve years in Hillsborough to foreclosure, and now completely relied on her mother. Erica’s mother, however, was planning to sell her house and move to Florida. At the time of the motion she was renovating the home, and planned to put it on the market once the renovations were complete. Erica argued that she should be allowed to take the child and move to Florida because of Florida’s lower tax rates, lower cost of living, and the thriving tourism industry that could help her find a job. 

On the other hand, William contended that Erica wanted to move to Florida to try and keep the child out of his life. He was sure that if the court allowed Erica to take their child to Florida with her, he would never see his son. He also rebutted Erica’s employment argument by stating that she could find work in New Jersey. William also provided a letter that confirmed he took and finished parenting classes as required by a March 21, 2014 court order. The court characterized him as displaying a “strong desire to do whatever is required of him to increase his visitation rights and have more quality time raising his son.”

Even though the judge noted that Erica’s mother’s house had not yet been sold, nor had she found a house to live in Florida, still no findings of fact or conclusions of law were made, and entered a brief two-sentence order on August 15, 2014, that denied Erica’s request to move to Florida with the child. The judge labeled the request as pre-mature, and also increased William’s allowed parenting time to eight hours every week. Erica appealed to the New Jersey Appellate Division.

The New Jersey Appellate Division found that because the motion judge made no findings of fact, they had no choice but to order the case be heard again at an evidentiary hearing. The appellate panel also noted that the motion judge failed to follow proper court procedure, and provided direction as to how the evidentiary hearing should proceed. 

The New Jersey Appellate Division stated that the first determination in a removal action, or in other words a motion to move out of state with the child, is to determine whether it is a true removal action, or effectively a motion for change of custody. In this case, because the custodial parent, Erica, wanted to move away, but the non-custodial parent, William, had a right to only eight hours of child visitation every week, it was in fact a removal action. Once a motion is determined to truly be a removal action, the parent wishing to move out of state with the child must meet a burden of production that requires them to prove establish a prima facie case of good faith and harm to the child. This usually requires a visitation proposal, that Erica has to create and present at the evidentiary hearing. 

Prima facie” is a Latin term that literally means “on its face.” It means a fact presumed to be true unless it is disproved. Prima facie proof is based on first impression, and accepted as correct until proved otherwise. For most civil actions, the person who brings forth the claim must present a prima facie case to avoid dismissal. The same person must produce enough evidence on all elements of the claim to support the claim and shift the burden of evidence production to the other party. If this person fails to make a prima facie case, the opposing side may move for dismissal or a request a favorable verdict without presenting any evidence to rebut whatever evidence the plaintiff has presented. This is because the burden of persuading a judge or jury always rests with the plaintiff. On the other hand, “conclusive” proof is evidence that may not be disputed and must be accepted by a court as a definitive proof of fact. Conclusive proof or evidence puts an end to doubt, question, or uncertainty.

Erica’s burden to prove a prima facie case is not a particularly difficult one. All she, or any other custodial parent filing a removal motion, has do to is submit evidence that, if unrebuttable, could support a favorable judgment. This test gives special defference to the custodial parents right to find fulfillment and happiness, and guarantees the non-custodial parent regular communication and contact with the child so as to sustain their relationship. This test is tempered by a best interest of the child analysis through the requirement of proof that the child will not suffer due to the move.  

In determining whether the prima facie test has been met, a trial judge must consider twelve different factors, including: the custodial parent’s reasons for moving, the reasons for the non-custodial parent’s opposition to the move, the prior history between the parents, if the child will have the same education, health, and recreational opportunities; any special needs or talents of the child that may require special accommodation; if a communication and visitation schedule could be developed; the likelihood of the custodial parent will foster a relationship between the child and the noncustodial parent; the effect on child’s relationship with extended family; the child’s preference; if the child is about to graduate; if the noncustodial parent is able to relocate as well, and any other factor that may affect the best interest of the child. The New Jersey Appellate Division held that the most important factor was whether the move would negatively affect the best interest of the child. 

At the evidentiary hearing, if Erica cannot provide evidence for these factors, then William would automatically get a judgment in his favor, denying removal. Conversely, if Erica succeeds in making a prima facie case, then the burden of production would shift to William to submit evidence that either the move is not in good faith or in opposition to the best interest of the child. 

My law office can help you if you face an issue with custody of your child.  Please call today.